The role of race in US criminal justice

February 11, 1999

By Edward McGlynn Gaffney Jr.

NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM. By David Cole The New Press 218 pp., $25

We love to symbolize our society's commitment to equality with classical icons like Lady Justice, with her blindfold and neatly balanced scales. And we resonate with pride to the words "Equal Justice Under Law" emblazoned over the portico of the Supreme Court. But Georgetown law professor David Cole shatters these illusions in his powerful indictment of the criminal justice system. The commitment to equal criminal justice in America, Cole suggests, is a mile wide and an inch deep.

For every black man who graduates from college each year, 100 are arrested. In one county in Florida where about 5 percent of the drivers are dark skinned, 70 percent of the drivers stopped by the police are black or Hispanic. From 1976 (when the court reinstated the death penalty) to 1998, seven white prisoners were executed for killing black victims; in the same period, 115 blacks were executed for killing white victims. The court has turned a blind eye to each of these instances of shocking racial disparity from arrest to execution.

Discrimination on the basis of economic class also pervades the criminal-justice system. In 1964, New York Times columnist Anthony Lewis wrote a powerful book called "Gideon's Trumpet." Lewis celebrated the courage of Clarence Gideon, who was found guilty of a felony he did not commit, and who pleaded to the Supreme Court in a handwritten petition for an attorney to help him in his appeal. Lewis also celebrated the generosity of Abe Fortas, later to become a justice, who argued Gideon's cause before the court without a fee, and persuaded the court that the Sixth Amendment right to counsel must be extended to everyone in jeopardy of losing their liberty through a felony conviction. Lewis could not write such a book today. The biblical metaphor of a clarion call to battle that Lewis invoked is now, in Cole's words a "horn sound[ing] only a distant, and increasingly hollow, echo." Why?

Because the court has eroded the right to counsel at the very points in the process where defendants need it most: before indictment but after police investigation has focused on a particular suspect, and on appeal. The right still obtains at trial, but the court has eviscerated its meaning by allowing virtually any attorney - even one who slept through the trial or who was drunk throughout the trial - to meet the standard of "effective assistance of counsel."

What are the costs of inequality in our criminal-justice system? Cole argues persuasively that people obey the law primarily because they think it is the right thing to do, not because they fear punishment. Where a community accepts the social rules as legitimate, the rules will be largely self-enforcing. Citing a 1995 Gallup poll that found that 77 percent of blacks and 45 percent of whites think that the system treats blacks more harshly than whites, Cole argues that severe costs flow from this erosion of confidence that the criminal justice system is fundamentally fair. "Where a community views the law as unjust, enforcement is subverted. Police find it more difficult to get leads, prosecutors find witnesses more reluctant to testify, and jurors may engage in nullification."

Cole is not content to demonstrate the ways in which consideration of race and class has corrupted our society's commitment to procedural fairness and equality. His final chapter devoted to remedies is theoretically sound and immensely practical. Judges, lawyers who practice in this area, and informed citizens and elected officials should read this chapter carefully. Doing so would help restore the value of equality to the place it ought to occupy in our criminal justice system.

*Edward McGlynn Gaffney Jr. is a professor of law at Valparaiso University School of Law in Valparaiso, Ind.

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